Con Law

Question 1

Establishment Clause - Definition

Answer 1

Requires govt neutrality with respect to religion. State action that targets religious conduct for distinctive treatment (endorsing or disapproving) is not neutral and violates this clause.

Question 2

Establishment Clause - Test

Answer 2

*If govt discriminates against a specific religion - strict scrutiny
*If govt targets religion generally - Lemon Test (PEG)
P - secular PURPOSE
E - EFFECT of act neither advances nor inhibits religion
G - doesn’t create excessive GOVT entanglement with religion

Question 3

Free Exercise Clause - Definition

Answer 3

Protects freedom to exercise religion

Question 4

Free Exercise Clause - Test

Answer 4

• Strict Scrutiny

* Note - only applies if the PURPOSE of the law is to limit or interfere with religion. Challenger must first show this.

Question 5

Strict Scrutiny

Answer 5

• A law will be upheld if it is NECESSARY to achieve a COMPELLING govt interest.
• Must be the least restrictive means necessary
• Govt bears burden of proof

Question 6

Intermediate Scrutiny

Answer 6

• A law will be upheld if it is SUBSTANTIALLY related to an IMPORTANT govt interest
• Govt bears burden of proof

Question 7

Rational Basis

Answer 7

• A law will be upheld if it is RATIONALLY related to a LEGITIMATE govt purpose
• Challenger bears the burden of proof

Question 8

Freedom of Speech - Content-Neutral

Answer 8

*Intermediate-type scrutiny: SON
S - SUBSTANTIALLY related to an important govt interest
O - must leave OPEN ample alternative channels
N - must be NARROWLY drawn but not necessarily the least restrictive means

Question 9

Lesser Protected Categories of Speech - Incitement of Imminent Unlawful Activity

Answer 9

The govt may punish speech if: (1) substantial likelihood the speech with bring about imminent illegal activity; (2) the speech is aimed at causing the illegal activity

Question 10

Commercial Speech - Test

Answer 10

STAN
S - SUBSTANTIAL govt interest 
T - speech must be TRUTHFUL and lawful
A - restriction must directly ADVANCE govt interest
N - must be NARROWLY tailored

Question 11

Obscenity - three prong test to determine if obscene

Answer 11

POV
P - appeals to PRURIENT interest (community standard)
O - patently OFFENSIVE (community standard)
V - taken as a whole lacks serious political, literary, artistic, scientific VALUE (national standard)

Question 12

Profane/Indecent Speech is generally protected but is punishable if:

Answer 12

1. aired over broadcast media (not cable)

2. occurs in public school

Question 13

EQUAL PROTECTION - suspect classes/fundamental rights - test

Answer 13

Strict Scrutiny - RIO and VAT
R - Race, I - Immigrants, O - National Origin
V - right to vote, A - access to courts, T - right to travel

Question 14

EQUAL PROTECTION - quasi suspect class - test

Answer 14

Intermediate Scrutiny - GIN
G - Gender, I - Immigrant School Children, N - Non-marital children
**gender often requires the addition of am “exceedingly persuasive justification”
**note - in certain cases states may separate genders if they show the “exceedingly persuasive justification” and that the separate facilities are substantially equivalent.

Question 15

EQUAL PROTECTION - Proving Discriminatory Classifications

Answer 15

Classification must be discriminatory to be reviewed under heightened scrutiny. (1) on its face; or (2) as applied - disparate impact and govt officials applying it had a discriminatory purpose
*note - disparate impact alone is not enough, there must be discriminatory motive

Question 16

Emoluments Clause

Answer 16

Prohibits the president and federal officials from receiving gifts from foreign govts without the consent of congress. Problems with enforcement of this clause: standing, PQD, whether applies to president.

Also a congressional emoluments clause that prevents a member of either house from benefiting from a vote to create or increase pay of a federal officer if they are later appointed to that office